The present action was brought to enjoin a nuisance allegedly created by the defendant Town of Kirkland in the operation of the town dump located across the road from the plaintiffs’ farm. In addition to the injunctive relief, the complaint asks $15,000 for damages suffered from 1950 to the commencement of the action. As a partial defense defendant pleads that plaintiffs have failed to comply with section 50-e of the General Municipal Law. Plaintiffs moved to strike this defense as insufficient as a matter of law. Special Term denied the motion on the ground that section 50-e ‘ ‘ may well afford a defense concerning those damages which accrued prior to the ninety (90) day period for the filing of the claim.” The question on this appeal is limited to the propriety of this ruling.
Section 50-e provides that notice of claim in tort cases ‘ ‘ where a notice of claim is required by law as a condition precedent to the commencement of an action ’ ’ against a public corporation shall comply with the section and shall be given within 90 days after the claim arises. The case law, however, holds that notice of claim in suits against municipalities need not be given where the action is brought in equity to restrain a continuing act. (Sammons v. City of Gloversville, 175 N. Y. 346; Thomann v. City of Rochester, 256 N. Y. 165; Missall v. Palma, 266 App. Div. 861, affd. 292 N. Y. 563; Feuer v. Brenning, 201 Misc. 792, affd. 279 App. Div. 1033; Meinken v. County of Nassau, 14 Misc 2d 304; Village of Victor v. Angelo, 14 Misc 2d 577.)
The complaint in the case at bar seeks, in addition to injunctive relief, money damages for injury to property and health *476stemming from the alleged nuisance. Sammons v. City of Gloversville (supra, p. 351) established the principle that the demand for money damages was subordinate to the main prayer for equitable relief and ‘ ‘ incidental to the preventive relief, which is prayed for.” In that decision the Court of Appeals enunciated the rule which determines the question before us when it said (p. 351): “ Acquiring jurisdiction for one purpose, it [equity] will retain it for all purposes and adjust, as between the litigants, all matters involved in their dispute. Therefore, we hold that, upon the correct interpretation of the statute [requiring notice], it has no application to a suit on the equity side of the court for relief from wrongful acts in the nature of trespass; which, day by day, cause injury and damage to the complainant; although there is involved a demand for the damages in the past.” Having established that the notice provisions were inapplicable where the prayer for money damages was incidental, the court was then free to award money damage in addition to injunctive relief.
Whether the demand for damages is purely incidental cannot be determined in any given situation without an examination of the statute or character provisions controlling the defendant. The Gloversville City Charter (§ 56; L. 1899, ch. 275) which contained the notice requirement in the Sammons case merely provided that ‘ ‘ all claims for damages alleged to have occurred by reason of the wrongful act or neglect of the city * * * shall be presented in writing to the common council ”.
In Thomann v. City of Rochester (supra) where an injunction was granted but damage's were denied, the Sammons case was distinguished in the following language (pp. 169-170): ‘ ‘ If words so comprehensive do not reach the claim in suit, one is at a loss to imagine how any form of words would be sufficient to include it. Our ruling in Sammons v. City of Gloversville * * * is in no wise to the contrary. We held of the statute there before us that it excluded causes of action for continuing wrongs and remedies in equity with damages merely incidental. 'The draftsman of the Rochester statute has taken a leaf from that decision. He has supplied what was there omitted. There is no gap in his catalogue of remedies and wrongs.” The Rochester City Charter indeed supplied the gaps omitted from the Gloversville Charter specifying that notice must be given for all claims ‘ ‘ whether casual or continuing, continuing and continuous trespass, continuing and continuous invasions of property.” (§ 632; L. 1907, ch. 755.) (The charter provisions are cited in the Thomann case, pp. 168-169.) This provision specifically covered continuing nuisance *477and was more sweeping and all-inclusive than the Grloversville City Charter.
The distinction between the charter in the Sammons case and the one in the Thomann case was recognized by the Second Department when it wrote in Missall v. Palma (supra, p. 861): “ The cases invoked by the appellants (Thomann v. City of Rochester * * * and Realty Associates, Inc. v. Stoothoff, 258 App. Div. 462) concern a different and broader type of statute. Moreover in the Thomann case (supra) the court recognized that its decision in nowise impaired the rule in the Sammons case (supra).” See, also, Meinken v. County of Nassau (supra) where a motion to strike the defense of section 50-e was granted. The Meinken case is directly in point and draws the same distinction between the Sammons case and the Thomann ease as the court drew in the Missall case.
Section 50-e comes into play where ‘1 notice of claim is required by law as a condition precedent to the commencement of an action ”. In the present case the suit is against a town. Section 67 of the Town Law provides: ‘ ‘ Any claim other than a claim specified in section two hundred fifteen of the highway law which may be made against the town for damages for wrong or injury to person or property or for the death of a person, shall be made and served in compliance with section fifty-e of the general municipal law.” The language of this section is very much like the section of the Grloversville City Charter construed in the Sammons case. (See Meinken v. County of Nassau, supra.) With this provision of the Town Law should be compared section 52 of the County Law. That statute is much broader applying to claims ‘1 for invasion of personal or property rights, of every name and nature, and whether casual or continuing trespass or nuisance and any other claim for damages arising at law or in equity.” This language is clearly similar to provision of the Rochester City Charter construed in the Thomann case. (See Realty Associates v. Stoothoff, 258 App. Div. 462.) If we were dealing with a statute of this breadth the Special Term decision in the instant case would have been correct in concluding that this case fell within the orbit of the Thomann case.
The Judicial Conference in its extensive report on section 50-e did not consider the problem posed herein. Rather the Conference dealt with varying procedural points under the statute but did not explore the substantive question here involved. (See Tenth Annual Report of N. Y. Judicial Council, 1944, p. 263; Eleventh Annual Report, pp. 51-52; Twelfth Annual Report, pp. 21-23, 59-60.)
*478In the present posture of the law as set forth in the decisions governing this appeal the Special Term order should be reversed and plaintiff’s motion to dismiss the partial defense should be granted.